Senate Bill No. 647

(By Senators Prezioso and Unger)

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[Introduced February 20, 2006; referred to the Committee

on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend and reenact §61-2-9a of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §62-2-9a, all relating to providing revisions to the antistalking law in order to increase victim and public safety; adding clarity toward identification of the activity of stalking; strengthening criminal penalties; eliminating the requirement that the stalker and the victim share some type of personal or other relationship before the crime may occur; and authorizing the Governor's Committee on Crime, Delinquency and Corrections to propose legislative rules designed to aid law enforcement in framing more effective responses to the crime of stalking.

Be it enacted by the Legislature of West Virginia:
That §61-2-9a of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §62-2-9a, all to read as follows:
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; harassment; penalties; definitions.
(a) Any person who willfully and repeatedly follows and or harasses a another person with whom he or she has or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(b) Any person who willfully and repeatedly follows and or harasses another person and while doing so makes a credible threat against a the other person with whom he or she has or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, or against a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney with the intent to place or placing him or her in reasonable apprehension that he or she or a member of his or her immediate family will suffer death, sexual assault, kidnaping, bodily injury or battery for his or her safety, or the safety of another person, is guilty of a misdemeanor felony and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months in a correctional facility for not less than one nor more than three years or fined not more than one thousand dollars, or both.
(c) Any person who repeatedly harasses or repeatedly makes credible threats against a person with whom he or she has, or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, or against a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(d) (c) Notwithstanding any provision of this code to the contrary, any person who violates the provisions of subsection (a) or (b) or (c) of this section in violation of an order entered by a circuit court, magistrate court or family law master court, in effect and entered pursuant to part 48-5-501, et seq., part 48-5-601, et seq. or part 48-27-403 or part 48-27-501 of this code, or in violation of a foreign protection order under the provisions of part 48-28-2(2) or in violation of an order issued under the provisions of subsection (h) of this section, or while armed with a deadly weapon as the term "deadly weapon" is defined in section two, article seven of this chapter, or who is in violation of a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons, is guilty of a misdemeanor felony and, upon conviction thereof, shall be incarcerated in the county jail for not less than ninety days nor more than one year a correctional facility for not less than one nor more than ten years or fined not less than two thousand dollars nor more than five ten thousand dollars, or both.
(e) (d) A second or subsequent conviction for a violation of this section occurring within five years of a prior conviction is a felony punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than three thousand dollars nor more than ten thousand dollars, or both.
(f) Notwithstanding any provision of this code to the contrary, any person against whom a protective order is in effect pursuant to the provisions of 48-27-403 of this code who has been served with a copy of said order or 48-27-501 of this code who is convicted of a violation of the provisions of this section shall be guilty of a felony and punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than three thousand dollars nor more than ten thousand dollars, or both.
(g) (e) For the purposes of this section:
(1) "Harasses" means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress that seriously alarms, annoys, torments or terrorizes the person;
(2) "Credible threat" means a threat of bodily injury made with the apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat could be carried out;
(3) "Repeatedly" means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose; and
(3) (4) "Bodily injury" means substantial physical pain, illness or any impairment of physical condition; and
(4) "Immediate family" means a spouse, parent, stepparent, mother-in-law, father-in-law, child, stepchild, sibling, or any person who regularly resides in the household or within the prior six months regularly resided in the household.
(h) (f) Nothing in this section shall be construed to prevent lawful assembly and petition for the redress of grievances, including, but not limited to: Any labor dispute; demonstration at the seat of federal, state, county or municipal government; activities protected by the West Virginia Constitution or the United States Constitution or any statute of this state or the United States.
(i) (g) Any person convicted under the provisions of this section who is granted probation or for whom execution or imposition of a sentence or incarceration is suspended is to have as a condition of probation or suspension of sentence that he or she participate in counseling or medical treatment as directed by the court.
(j) (h) Upon conviction, the court may issue an order restraining the defendant from any contact with the victim for a period not to exceed ten years. The length of any restraining order shall be based upon the seriousness of the violation before the court, the probability of future violations, and the safety of the victim or his or her immediate family. The duration of the restraining order may be longer than five years only in cases when a longer duration is necessary to protect the safety of the victim or his or her immediate family.
(k) (i) It is a condition of bond, probation or parole for any person accused of the offense described in this section that the person is to have no contact, direct or indirect, verbal or physical, with the alleged victim.
(l) (j) Nothing in this section may be construed to preclude a sentencing court from exercising its power to impose home confinement with electronic monitoring as an alternative sentence.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 2. PRESENTMENTS AND INDICTMENTS.
§62-2-9a. Authorization for legislative rule-making.
The Governor's Committee on Crime, Delinquency and Corrections shall convene a meeting or meetings of the advisory committee created under the provisions of section one thousand, one hundred two, article twenty-seven, chapter forty-eight of this code and in order to propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code. The rules shall be designed to assist law enforcement in framing an adequate response to stalking at the state, county and municipal levels of government, including law-enforcement agencies and communications and emergency operations centers which dispatch law-enforcement officers: Provided, That the rules and procedures must be consistent with the priority criteria prescribed by generally applicable department procedures.



NOTE: The purpose of this bill is to provide for revisions to the anti-stalking law in order to increase victim and public safety. To this end the bill adds clarity toward identification of the activity of stalking while strengthening criminal penalties in order to enhance the public's perception of the seriousness of the crime. The bill, additionally, eliminates the requirement that the stalker and the victim share some type of personal or other relationship. Finally, the bill authorizes the Governor's Committee on Crime, Delinquency and Corrections to propose legislative rules designed to aid law enforcement in framing more effective responses to the crime of stalking.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.